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CHAPTER I

INTRODUCTION

The Juvenile Justice (Care and Protection of Children) Act, 20001 (JJA 2000) is a revolutionary piece of
legislation engineered and crafted to protect human rights of children in India. The JJA has gained special
significance in todays time because it is increasingly becoming clear that the future of children will determine
the future of the country and the society. And the protection of the rights of children will go a long way in
determining their future. The JJA also gains a lot of importance considering the fact that it is a piece of
legislation focussed on one the weakest target group of the society the children. Moreover, after a long time
India has given itself a human rights legislation of some teeth and effect.

The JJA has not just revolutionized the system of justice delivery for children, but has taken a huge leap in
ensuring that neglected and ill-treated children are given the right to a new breathe of life and an equal
opportunity to educate themselves and hence improve the socio-economic status of themselves and their
families, as is given to their more fortunate counterparts 2

A staggering 30 million children in India belonged to families living in conditions of extreme distress and
deprivation. Violence against girls, child labour, children living on the streets, trafficking, violence in schools
and violence in conflict situations have all been reportedly on the rise. The need for specific instrumentality for
children stems from these pressing situations. Juvenile justice policy in India is largely governed by the
constitutional mandate given under Article 15 that guarantees special attention to children through necessary
and special laws and policies that safeguard their rights. The Right to equality, protection of life and personal
liberty and the right against exploitation is enshrined in Articles 14, 15, 16, 17, 21, 23 and 24. The Constitution
of India recognizes the vulnerable position of children and their right to protection. 3

The course of events concerning juvenile justice in this country was equally influenced by several international
developments. It primarily includes the UN Convention of the Rights of the Child(UNCRC) 1989, the UN
Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) 1985 4Driven by
constitutional guarantees for protecting children as well as recognizing international concern for child, the
Indian state has made numerous arrangements in this direction. To give effect child protection, a number of
laws were brought in.

The Ministry of Women and Child Development has been instrumental in this direction and it has particularly
catered to children in crisis situation such as street children, children who have been abused, abandoned

1
Copy of the Act is available at http://wcd.nic.in/childprot/jjact2000.pdf
2
http://www.dnaindia.com/india/report_government-all-set-to-amend-juvenile-justice-act_1396998
3
http://indiankanoon.org/doc/370227/
4
http://www.nujslawreview.org/articles2009vol2no4/ved-kumari.pdf
1|Page
children, orphaned children, children in conflict with the law, and children affected by conflict or disasters, etc.
5

The official stand on child protection is marked by many programmes, in keeping with the current
developments, is visible in the approach of the Ministry of Women and Child Development. The National Plan
of Action for Children 2005 articulated the rights agenda for the development of children. 6

The existing mechanism of child protection at official level mainly include the following programmes:

Juvenile Justice Act

Integrated Programme for Street Children

CHILDLINE Service

Shishu Greh Scheme

Scheme for Working Children in Need of Care and Protection

Rajiv Gandhi National Creche Scheme for the Children of Working Mothers

Scheme to Combat the Trafficking of women and Children for Commercial Sexual Exploitation

Central Adoption resource Agency (CARA)7

In addition to the above, the Ministry has just released its draft scheme The Integrated Child Protection. This
scheme envisages a holistic approach to combat the issues affecting children, In order to reach out to all
children, in particular to those in difficult circumstances, the Ministry of Women and Child Development
proposes to combine its existing child protection schemes under one centrally sponsored scheme titled
Integrated Child Protection Scheme (ICPS). The proposed ICPS brings together multiple vertical schemes under
one comprehensive child protection programme and integrates interventions for protecting children and
preventing harm.8

CHATPER II

FACTUAL ANALYSIS

The statistics of juvenile crimes in the country against total crime in the country indicates steady decline in
early 1990s and static in late 1990s and then again rose significantly in early 2000 and still increasing
gradually. It has been observed that children at the threshold of adulthood -in the age groups of 16-18 years are
more prone to taking up criminal activities. This increase may be partly attributed to inclusion of delinquent
boys from 16 to 18 years for the first time as per new definition of Juvenile Justice Act, 2000. The table below
gives a clear picture of the rate of juvenile delinquency under the Indian Penal Code (IPC), incidence of juvenile

5
http://legalassistanceforum.org/downloads/Text%20Book%20in%20PDF%20Format.pdf
6
http://legalassistanceforum.org/downloads/Text%20Book%20in%20PDF%20Format.pdf
7
http://www.nationalbarindia.org/articles/32/indian-juvenile-justice-system-analysis/
8
http://legalservicesindia.com/article/article/juvenile-justice-system-&-its-delinquency-in-india-1031-1.html
2|Page
(SLL) crimes in India and juveniles apprehended under IPC and SLL (age wise) during the period 1990 to
2007.9

Juveniles Apprehended under IPC


and SLL & their age.
% to
% to Juvenile AGE( in years )*
Juvenile total
Year total (SLL)
Crimes crimes
crimes * crimes Number
*
7 - 12 12 - 16 16 - 18
1990 15, 230 0.9 14,799 0.45 30, 816 11.9 76.5 11.5
1991 12, 588 0.8 22,143 0.66 29, 591 19.7 63.8 16.4
1992 11,100 0.7 7,532 0.21 21, 358 16.1 69.3 14.7
1993 9, 465 0.6 7,199 0.19 20, 067 19.6 67.0 13.5
1994 8, 561 0.5 5,962 0.15 17, 203 21.5 64.3 14.3
1995 9, 766 0.6 5,255 0.12 18, 793 18.0 63.9 18.1
1996 10, 024 0.6 5,719 0.12 19, 098 18.3 59.6 22.1
1997 7, 909 0.5 4,408 0.09 17, 796 15.4 68.4 16.2
1998 9, 352 0.5 6,007 0.14 18, 923 17.6 61.0 21.3
1999 8, 888 0.5 5,569 0.18 18, 460 21.9 55.9 22.3
2000 9, 267 0.5 5,154 0.15 17, 982 18.3 63.3 18.4
2001 16,509 0.9 8,332 0.23 33,628 10.9 37.9 51.2
2002 18,560 1.0 8,981 0.23 35,779 12.5 38.7 48.7
2003 17,819 1.0 7,867 0.20 33,320 10.8 35.1 54.2
2004 19,229 1.0 5,756 0.13 30,943 6.8 40.1 53.1
2005 18939 1.0 6,662 0.20 32,681 5.0 40.1 54.9
2006 21088 1.1 4,729 0.14 32,145 5.0 39.0 56.0
2007 22865 1.1 4,756 0.12 34,527 4.2 35.1 60.7
Source: NCRB, report, 1990-2007 New Delhi.15 * Percentages

The number of juvenile crimes in 2007 increased by 8.4 per cent over 2006 with 22,865 crimes registered
during 2007, up from 21,008 in 2006. Out of 34,527 juveniles apprehended in year 2007, 29,771(86.2%) were
arrested under IPC crimes while 4,756 (13.8 %) arrested for committing SLL crimes. It is observed that during
2007, 1,460 juveniles were apprehended in the age group of 7-12 years, 12,114, juveniles were apprehended in
the age group of 12-16 years whereas bulk of juveniles (20,953) were arrested under the age group of 16-18
years. The percentage share of juveniles apprehended under these age groups was 4.2%, 35.1% and 60.7%
respectively. However, their share in the IPC is small, and it is even smaller in SLL crimes. A large number of
juveniles (68.4%) belong to the poor families. 10(Income below 25000/) Main IPC offences in which they are
reported to be involved are hurt, theft, burglary, riot and molestation. Similarly, main SLL offences are
gambling, excise and Prohibition

Type of juvenile (IPC) offences in the year 2007

OFFENCE INDIA

Attempt 547
to murder

Murder 672
Rape 746

9
http://www.forensic.to/webhome/drgsbajpai/lcwseminar.pdf
10
http://indiankanoon.org/doc/370227/
3|Page
Molestation 476
Riot 1440
Burglary 2603
Theft 5,606
Hurt 3,810
Others 5,418

Source: NCRB, report, 2007, New Delhi

In presenting these facts, the idea is to point out theweakening of figures, the motives for conformity to social
norms and the disruption of social relationships and social bonds. Despite preventive legislation, the problem
of delinquency continues and unabated. It is therefore, necessary that children should be the focus Of
development. Since they have only one opportunity To grow and develop, While the handling of a child is
recognized as delinquent. Though a formal Juvenile Justice system may be justifiable to a certain extent, there
must be some concrete and comprehensive plan of action. It should be evolved for the well being and welfare of
all children who, due to various situational compulsions, are totally marginalised or left out of the social stream.
We also need to evolve an appropriate policy framework for the protection, care and development of neglected
children involving the active cooperation and participation of individuals, groups, communities and civil society
at large. Keeping this in view, a few suggestions may be offered.

CHAPTER III

HISTORICAL LEGAL BACKGROUND OF THE ACT

Juvenile Justice in India is governed by the Juvenile Justice (Care and Protection of Children) Act, 2000. It is a
successor to the juvenile justice Act, 1986 and has been enacted to correct glaring loopholes that were a
characteristic feature of its predecessor, though entirely not without failings of its own. These statutes have
been enacted in the recent past with not even a time gap of a quarter of a century as against present times. This
chapter explores the situation of juvenile justice in India from the very beginning. 11

Ancient India though governed by a number of laws hardly had any law specially dealing with juvenile
delinquency. As the problem of neglected children and juvenile delinquency grew with times, a need for
legislation to that effect was felt.

India, a British colony then took inspiration from England, which by then had already passed its own juvenile
legislation. The Apprentices Act was passed in 1850 as the first juvenile legislation to deal with children in
India. As per the provisions of this act, children between ten to eighteen years of age found indulging in crime
were placed in apprenticeship in a trade. 12

11
http://www.dnaindia.com/india/report_government-all-set-to-amend-juvenile-justice-act_1396998
12
http://legalassistanceforum.org/downloads/Text%20Book%20in%20PDF%20Format.pdf
4|Page
The Indian Penal Code came after another ten years had passed. Though it is not a specific legislation dealing
with juvenile justice, nevertheless it has some provisions when it comes to underage criminals. Section 82[5] of
the IPC grants blanket immunity to a child below seven years of age imbibing the principle of doli incapax. The
Latin term literally means incapable of crime. IPC assumes that a child less than seven years of age does not
have the capacity to form a mental intent to commit a crime knowingly. Section 83[6] of the IPC is an extension
of section 82 with a rider attached. It grants qualified immunity to a child aged between seven to twelve years.13

The next milestone in the history of development of juvenile justice in India was The Reformatory School Act of
1876 which had a provision to empower the government to establish reformatory schools and to keep young
criminals there till they found employment.

Thereafter, a jail committee was appointed in 1919 following the recommendations of which separate
legislations dealing with juvenile delinquency were enacted in different provinces, the first ones being in
Madras, Bengal and Bombay. Since then, as Professor B.B. Pande of Delhi University puts it, the twin concepts
of "juvenile delinquency" and "juvenile justice" have gone through a constant process of evolution and
refinement. 14

After we gained independence, in 1960 a new act focussing on children was passed. This was the Children Act,
1960 to provide for the care, protection, maintenance, welfare, training, education and rehabilitation of
neglected or delinquent children and for the trial of delinquent children in the Union Territories. Even after
this, the juvenile justice system faced different problems; the most important of them being the fact that
different states had different acts to deal with juvenile delinquency which led to children in equal situation
being judged differently in accordance with different provisions in different acts. The Supreme Court in Sheela
Barse v. Union of India observed we would suggest that instead of each State having its own Children's Act in
other States it would be desirable if the Central Government initiates Parliamentary Legislation on the subject,
so that there is complete uniformity in regard to the various provisions relating to children in the entire
territory of the country. The Children's Act which may be enacted by Parliament should contain not only
provisions for investigation and trial of offences against children below the age of 16 years but should also
contain mandatory provisions for ensuring social, economic and psychological rehabilitation of the children
who are either accused of offences or are abandoned or destitute or lost. Moreover, it is not enough merely to
have legislation on the subject, but it is equally, if not more, important to ensure that such legislation is
implemented in all earnestness and mere lip sympathy is not paid to such legislation and justification for non-
implementation is not pleaded on ground of lack of finances on the part of the State. The greatest recompense
which the State can get for expenditure on children is the building up of a powerful human resource ready to
take its place in the forward march of the nation.

This led to the passing of Juvenile Justice Act, 1986 for the care, protection and rehabilitation of juvenile
delinquents and neglected children. This act was soon replaced by Juvenile Justice (Care and Protection of

13
http://legalservicesindia.com/article/article/juvenile-justice-system-&-its-delinquency-in-india-1031-1.html
14
http://www.forensic.to/webhome/drgsbajpai/lcwseminar.pdf
5|Page
Children) Act, 2000; the reason for the replacement being deficiency in the old Juvenile Justice Act of 1986 that
it did not provide for the differential approach to delinquent juveniles and neglected juveniles. 15

The aim of J.J.A. 2000 is to consolidate and amend the law relating to juveniles in conflict with law and children
in need of care and protection, by providing for proper care. Protection and treatment by catering to their
development needs, and by adopting a, child-friendly approach in the adjudication and disposition of matters in
the best interest of children and for their ultimate rehabilitation through various institutions established under
this enactment.16

CHAPTER IV

MAIN FEATURES OF THE ACT

The JJA 2000 seeks to use the term child as distinguished from juvenile while both of them have been defined
as a person who has not completed eighteenth year of age. However, the distinct usage gets blurred in many
sections and interpreting the sections strictly by reference to the specific term used in different parts of the
sections results in confusion.17

As is apparent from the nomenclature of the JJA 2000, it provides for a segregated approach in dealing with the
two categories of children covered under it, namely, juveniles in conflict with law and children in need of care
and protection. It continues to have two separate adjudicatory bodies to deal with the two categories of
children. 18The JJA 2000 lays down that juveniles in conflict with law may be kept in an observation home while
children in need of care and protection need to be kept in a children home during the pendency of proceedings
before the competent authority. 19This provision is in contradistinction with the earlier Acts which provided for
keeping all children in an observation home during the pendency of their proceedings, presuming children to
be innocent till proved guilty.

A revolutionary change introduced by the JJA 2000 is in the constitution of the children court referred to as the
Juvenile Justice Board (hereinafter JJB). It is constituted as a bench consisting of one Magistrate and two social
workers. The decisions are to be made by majority and the Magistrate has a casting vote in case of a tie. The JJB
is required to determine age, decide the question of bail, determine if the child has committed the alleged
offence or not, as well as pass appropriate orders in the matter. In deciding any of these matters, the two social
workers together may overrule the decision of the Magistrate. It means that the members of the JJB do not have

15
http://www.zis-online.com/dat/artikel/2011_6_584.pdf
16
http://www.dnaindia.com/india/report_government-all-set-to-amend-juvenile-justice-act_1396998
17
http://www.forensic.to/webhome/drgsbajpai/lcwseminar.pdf
18
http://www.jiacam.org/0103/Jiacam05_3_3.pdf
19
http://www.nujslawreview.org/articles2009vol2no4/ved-kumari.pdf
6|Page
to decide the matter in strict compliance of technicalities of laws as two of the three members of the JJB are
non-law persons. However, this aspect of the provision has not been given its due recognition either in the
functioning of the JJB or in the Model Rules. In Delhi, the Principal Magistrates take help of the lay members
only at the stage of choosing appropriate measure under the Act. The lay members also neither feel empowered
nor have been enabled to appreciate technicalities of evidence to decide matters relating to bail, age, and
commission of offence. 20

The JJA 2000 has provided for appointment of special police officer in each police station to deal with children
under it. It continues to provide for grant of bail to all children irrespective of the offence being bailable or non-
bailable, except when the release will expose the child to moral danger or bring the child in contact with known
criminals or will be against the interest of justice.21

CHAPTER V

ISSUES UNDER THE ACT

A. Date of Applicability

While all the Acts dealing with children in conflict with law laid down the cut-off age defining child, these
legislations did not spell out when the child should be below that age. Is it the date of commission of offence, or
arrest, first production before the magistrate, or submission of charge sheet, or beginning of trial?22

The Supreme Court in Umesh Chandra v State of Rajasthan held that it is the date of commission of offence that
is relevant for determining the applicability of the Act. However, in Arnit Das v. State of Bihar, the Supreme
Court held that it is the age on the date of first production of the child before the competent authority that
determines the applicability of the Act. A Five Judge Bench in Arnit Das v. State of Bihar (hereinafter Arnit Das
II) reviewed Arnit Das as the Division Bench could not have been overruled Umesh Chandra decided by a bench
of three judges. The Five Judge Bench decided not to reconsider the issue being of only academic interest in the
case and upheld the ruling of Umesh Chandra. The confusion created by these contradictory decisions of the
Supreme Court has now been set at rest by the following definition of juvenile in conflict with law replaced by
the JJA (Amendment) Act 2006 making it clear that the age at the date of commission of offence is relevant for
applicability of the JJA 200023:

2(l)-juvenile in conflict with law means a juvenile who is alleged to have committed an offence and has not
completed eighteenth year of age as on the date of commission of such offence.24

20
http://legalservicesindia.com/article/article/juvenile-justice-system-&-its-delinquency-in-india-1031-1.html
21
http://legalassistanceforum.org/downloads/Text%20Book%20in%20PDF%20Format.pdf
22
http://www.forensic.to/webhome/drgsbajpai/lcwseminar.pdf
23
http://www.nujslawreview.org/articles2009vol2no4/ved-kumari.pdf
24
http://www.nationalbarindia.org/articles/32/indian-juvenile-justice-system-analysis/
7|Page
B. Applicability to Pending Cases

20 and 64 of the JJA 2000 lay down that the provisions of this Act will apply to the childrens cases pending
in various courts as well as of those undergoing imprisonment. These sections were primarily relevant for boys
above the age of 16 but below the age of 18 years on the date of commission of offence who were being dealt by
the regular criminal courts under the criminal justice system since they were above the age of juvenility under
the earlier legislation.25

However, the age having been increased to eighteen years, their cases were sought to be dealt with under the
provisions of the JJA 2000. The Supreme Court held in Pratap Singh v. State of Jharkhand that if a person was
below the age of eighteen years on the date when the JJA 2000 came into force, that is, April 1, 2001, only then
provisions of 20 and 64 applied to them. The same test was applied in Bijender Singh v. State of Haryana. 26

20 and 64 of the JJA 2000 were amended in 2006 and a proviso and an explanation were added to each.
Explanation to 20 makes it abundantly clear that the question of juvenility is to be determined by reference to
the age of the person on the date of offence. The explanations added to these sections clearly state that if the
person was below the age of 18 years on the date of commission of offence,27 the final orders in the pending
cases of such persons are to be made under the JJA 2000, even if the juvenile ceases to be so on or before the
date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in
force, for all purposes and at all material times when the alleged offence was committed. However, the
Supreme Court has continued to apply the test of age at the date of enforcement of the JJA 2000 in cases
decided even after the amendment of the Act without any reference to the amended provisions of the Act.
Jameels plea for transfer of his case to the juvenile court for final orders as per the provisions of the JJA was
refused by the Supreme Court in a judgment given on January 10, 2007. Similarly, in Jyoti Prakash Rai v. State of
Bihar 28decided on March 4, 2008, the Supreme Court again refused to transfer the case to the juvenile court for
final orders on the ground that he had ceased to be 18 years of age on April 1, 2001 as laid down in Pratap
Singh. While reference was made to the JJ (Amendment) Act 2006 in Balu @ Bakthvatchalu v. State of Tamil
Nadu, the Supreme Court referred the matter back to the lower court for age determination but the question for
which such age determination was necessary was framed on Pratap Singh terms, namely, to determine if the
child was below the age of 18 years on April 1, 2001. Neither was the amendment in 20 mentioned nor was
the question rephrased in accordance with its amended language. It is apparent that even in 2008 neither the
judges nor the lawyers practising in the Supreme Court are aware of the amendments made in the JJA 2000 in
2006. The only case in which the amended provisions were applied is Jayasingh v. State by Inspector of Police
in which the accused was sentenced to life imprisonment for murder as he was above the age of sixteen years.
As he was below the age of 18 years on the date of commission of offence, he was ordered to be released

25
http://www.zis-online.com/dat/artikel/2011_6_584.pdf
26
http://indiankanoon.org/doc/370227/
27
http://www.childlineindia.org.in/pdf/CP-JJ-JCL.pdf
28
http://www.nujslawreview.org/articles2009vol2no4/ved-kumari.pdf
8|Page
forthwith having already spent seven years in prison while he could not have been kept in custody for more
than three years in view of 15(1)(g) read with 20 and 64.29

C. Application of the Act to commission of Special/Serious Offences

The question whether the JJA (and earlier Children Acts) will apply to a child who has committed a serious
offence has been raised many times under different legislations. The earlier cases questioned applicability of
the Acts to children committing offences punishable with death penalty or life imprisonment in view of the
provisions contained in the Code of Criminal Procedure. The Supreme Court in Rohtas v. State of Haryana and
Raghbir v. State of Haryana held that the Children Act applicable at that time applied to such cases. 30

Later the question arose in view of the non-obstante clause contained in legislations dealing with special
offences providing for applicability of that Act to all offences committed under those legislations. For example,
the Guwahati High Court held that the TADA Act applied to children committing offences under that Act. The
Orissa High Court held that the bail provisions of the JJA were overshadowed by the NDPS Act. The Kerala High
Court took a completely different view of the matter and held the JJA applicable to children committing offences
under the SC and ST (Prevention of Atrocities) Act, 1989. It resolved that there was no conflict between the
provisions of the two Acts as the former dealt with offences and the latter with offenders. The Supreme Court in
Raj Singh v. State of Haryana held that JJA applied to a child charged under the NDPS Act without any analysis of
the language of the Acts involved. In Madan Singh v. State of Bihar, two children charged with TADA offences
were dealt with under the JJA.31

The issue now has been resolved by insertion of sub-section (4) to 1 which reads as follows:

Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall
apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with
law under such other law.

It is apparent that now children committing any offence have to be dealt with under the provisions of the JJA
2000 notwithstanding anything contrary contained in any other special legislation32

D. Age Determination

The National Family Health Survey III conducted in 29 States showed that nationally only 41% children under 5
years of age had their birth registered with civil authorities. In the households in the lowest wealth strata the
registration of births was 25% and only one in ten had a birth certificate.33

Majority of children dealt with under the JJA come from the lowest wealth strata and do not have a birth
certificate. The medical report provides a range of age and does not determine it accurately giving a wide

29
http://legalassistanceforum.org/downloads/Text%20Book%20in%20PDF%20Format.pdf
30
http://www.forensic.to/webhome/drgsbajpai/lcwseminar.pdf
31
http://www.jiacam.org/0103/Jiacam05_3_3.pdf
32
http://www.nujslawreview.org/articles2009vol2no4/ved-kumari.pdf
33
http://www.nationalbarindia.org/articles/32/indian-juvenile-justice-system-analysis/
9|Page
discretion to the judges who determine the age using various factors. In Bhoop Ram v. State of U.P., the
Supreme Court gave precedence to authentic documentary evidence over the medical opinion saying that
medical evidence was an estimate based on radiological examination and physical features and the possibility
of an error of estimate creeping into the opinion cannot be ruled out. It further reiterated that school
certificates should be accepted as reliable and genuine if there was no material on record to throw doubt about
the authenticity of the entry. However, in Ramdeo @ Rajnath Chauhan v. State of Assam, neither the school
register nor the medical evidence was relied upon by the Sethi J., even though both supported the plea of the
accused as being below the specified age on the date of offence. The medical examination conducted six years
after the event stated that the accused was 20 years of age. In his cross examination the doctor opined that the
age of the accused could not be below 20 years, but it could exceed by one year and he certainly was not 25
years of age. However, the trial court preferred to rely on the information culled out during cross-examination
of the father to hold him to be 19 years of age:34

DW1 Firato Chauhan was subjected to severe crossexamination and in the cross examination he admitted that
Rajanth, the accused is his second son after Suraj Chauhan, his eldest son. When he was 30 years old, his first
child was born, that means, before 40 years his first child was born and his second child was born before 37 years.
Suraj was born before 34 years. So, Ramdeo Chauhan must be born before 31 years which means that the present
age of Ramdeo Chauhan is 31 years. Furthermore, his first son Suraj has married before 10 years. He is now a
father of one female child. Rajnath Chauhan is his second son, i.e. he was born after Suraj. Even if I hold that Suraj
was 18 years at the time of his marriage, now he must be 28 years of age and Ramdeo Chauhan must be now 25
years of age. If he is now 25 years of age, at the time of alleged crime, he must be 19 years of age.

But it seems that the entry in the school admission register is based on a transfer certificate issued by another
school. As such, Mailoo Hindi School is not the first school where the accused first got admitted. Furthermore, from
the cross examination, it appears that registers of the school are not maintained properly. But age of the boy was
entered into the register on basis of a Transfer Certificate produced at the time of his admission in that school. The
source of the age recorded in the original school is not known to us in order to ascertain whether the information
furnished at the time of first admission in the school was correct or not and in his respect, no evidence has been
adduced. Furthermore, if the admission of the father in his cross examination regarding the age of the accused is
accepted, entries in the school certificate cannot be said to becorrect particulars of the age of the accused.

Furthermore, the manner in which he committed the murder in a pre-planned manner and without hesitation by
chopping one after another with a spade, which has been vividly described by him in his confession made before
the Judicial Magistrate, I think such type of pre plan, cold blooded, ghastly, gruesome murder cannot be possible
for a boy below 16 years of age.

34
http://legalservicesindia.com/article/article/juvenile-justice-system-&-its-delinquency-in-india-1031-1.html
10 | P a g e
(Emphasis supplied)

The trial court was more influenced by the nature of offence committed by the accused rather than the entry in
the school register supported by medical opinion indicating him to be a child on the date of the offence. This
reasoning was, however, quoted with approval by Sethi J., while upholding death penalty given to the accused.35

Such wide discretion has now been curtailed by clear rules on the subject. Rule 12 of the Model Rules 2007 lays
down in detail the evidence to be taken into consideration in determining age.

It declares matriculation certificate, age certificate from the school first attended and medical evidence as
conclusive proof of age. In case of medical evidence, it further declares that in case the age cannot be
determined accurately, the age determining body may give benefit to the child or juvenile by considering
his/her age on lower side within the margin of one year.36

Further, sub-rule 6 of Rule 12, provides that the provisions of sub-rule 3 apply even to those disposed off cases
in which the age was not determined according to the rules laid down in Rule 12. It further provides that the
sentences passed in such cases need to be dispensed with for passing appropriate order in the interest of the
juvenile in conflict with law. Determination of age and the sentence passed in Ram Deo Chauhan v. State of
Assam may be reopened as per this Rule.37

The Supreme Court, in Rajendra Chandra v. State of Chhattisgarh has evolved one more principle in relation to
age determination, namely, the benefit of doubt in age determination is to be given to the child. Now Rule
12(3)(b) of the Model Rules 2007 provides for giving benefit to the child or juvenile by considering his/her age
on lower side within the margin of one year.38

E. Plea of Juvenility

Ignorance of law is not an excuse is a well known maxim of criminal liability. However, ignorance of law
among the judges at different level, defence lawyers as well as prosecution lawyers is writ large in cases
relating to juvenile justice. In Gopinath Ghosh v. State of West Bengal, the Supreme Court, while allowing the
plea of child status that was raised for the first time before it and that too, by amending the appeal petition,
referred the matter back to the lower court for age determination. 39It said:

Ordinarily the Supreme Court would be reluctant to entertain a contention based on factual averments raised for
the first time before it. However, the Court is equally reluctant to ignore, overlook or nullify the beneficial
provisions of a very socially progressive statute by taking shield behind the technicality of the contention being
raised for the first time in the Supreme Court.

35
http://www.nujslawreview.org/articles2009vol2no4/ved-kumari.pdf
36
http://www.zis-online.com/dat/artikel/2011_6_584.pdf
37
http://www.forensic.to/webhome/drgsbajpai/lcwseminar.pdf
38
http://legalservicesindia.com/article/article/juvenile-justice-system-&-its-delinquency-in-india-1031-1.html
39
http://www.nujslawreview.org/articles2009vol2no4/ved-kumari.pdf
11 | P a g e
It further imposed a duty on the magistrates to determine age in all cases in which the accused appears to be 21
years of age or below to prevent the cases going all the way up to the Supreme Court and then being referred
back to the lower court for age determination. However, there are many cases in which the plea of child status
raised at a later stage was treated with suspicion as being an afterthought or not allowed in the absence of
evidence. 40

7A has been inserted in the JJA in 2006 to deal with this problem and reads as follows:

7A.Procedure to be followed when claim of juvenility is raised before any court.- (1) Whenever a claim of
juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of
commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an
affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a
child or t, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court
and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in
terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so
on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it
shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court
shall be deemed to have no effect.

It is noteworthy in this section that the claim of juvenility may be raised even after disposal of a case.41

CHAPTER VI

Constitution of Juvenile Justice Board and Procedure Before the Board

Section 4 of the Act deals the Juvenile Justice Board.It provides that the state government may by notification in
the Official Gazette, constitute for a district or a group of districts specified in the notification, one or more

40
http://www.nationalbarindia.org/articles/32/indian-juvenile-justice-system-analysis/
41
http://indiankanoon.org/doc/370227/
12 | P a g e
Juvenile Justice Boards for exercising the powers and discharging the duties conferred or imposed on such
boards in relation to Juvenile in conflict with law. The board shall consist of42:

1. Metropolitan Magistrate or Judicial Magistrate of 1st Class.

2. 2 social workers of whom at least one shall be a women.

They shall form a Bench. Every such Bench shall have the powers conferred by the Code of Criminal Procedure
on a Metropolitan Magistrate or a Judicial Magistrate First Class and the Magistrate shall be designated as
Principal Magistrate. No Magistrate shall be appointed as a member of the Board unless he has special
knowledge or training in child psychology or child welfare. No social worker shall be appointed as the member
of the Board unless he has been actively involved in health, education and welfare activities pertaining to
children for at least 7 years.43

The appointment of any member of the board may be terminated after holding inquiry by the state
government, if:

1. he has been found guilty of misuse of power vested under this Act.

2. he has been convicted of an offence involving moral turpitude and such conviction has not been reversed
or he had not been granted full pardon in respect of such offence.

3. he fails to attend the proceedings of the board for consecutive 3 months without any valid reasons or he
fails to attend less than three fourth of the sittings in a year.

Section 5 of the Act provides for procedure in relation to board. It provides that the board shall meet at such
time and shall observe such rules of procedure in regard to transaction business at its meetings as may be
prescribed. A child in conflict in law may be produced before an individual, member of the Board when the
Board is not sitting. A Board may act even in the absence of any member of the Board and no order made by the
board shall be invalid merely by reason of absence of any member during any stage of proceedings provided
that there shall be at least 2 members including the Principal Magistrate present at the time of final disposal of
the case. It further provides that in the event of difference of opinion among the members of the board in the
interim or final disposition, the opinion of the majority shall prevail, but where there is no such majority, the
opinion of Principal Magistrate shall prevail.

Section 6 enumerates the powers of the Juvenile Justice Board. It provides that when a Board has been
constituted, then notwithstanding anything contained in any other law, such Board shall have power to deal
exclusively with all proceedings under this Act relating to Juvenile in conflict with law. The powers conferred
on the Board by or under this Act may also be exercised by High Court and Court of Session, when the
proceedings come before them in appeal or revision.

42
http://www.zis-online.com/dat/artikel/2011_6_584.pdf
43
http://www.jiacam.org/0103/Jiacam05_3_3.pdf
13 | P a g e
Section 7 provides for the procedure to be followed by the Magistrate who is not empowered under the Act to
exercise the powers of the Board. As already discussed the Magistrate shall forward the Juvenile or Child to the
Juvenile Justice Board for conduct of proceedings. The authority to which proceeding is forwarded shall hold
the inquiry as if the child or the Juvenile had originally been brought before it.44

The Act further provide for the setting up of Observation and Special homes under section 8 and section 9. For
the temporary reception of a juvenile during the pendency of Inquiry and reception and rehabilitation of
juvenile in conflict with law respectively. Section 8 provides that state government may establish and maintain
either by itself or under an agreement with voluntary organization, observation homes in every districts or
group of districts for the temporary reception of any juvenile in conflict with law during the pendency of any
inquiry regarding them. The State Government may by rules provides for the management of observation
homes, including the standards and various types of services to be provided by them for rehabilitation and
social integration of a juvenile, and the circumstances under which the certification of an observation home
may be granted or withdrawn. The section also provides that every juvenile who is not placed under the charge
of a parent or guardian and is sent to an observation home shall be initially kept in a reception unit of the
observation home for preliminary inquires, care and classification for juveniles according to his age group,
such as seven to twelve years, twelve to sixteen years, and sixteen to eighteen years, giving due consideration
to physical and mental status and degree of the offence committed, for further induction into observation home.

Similarly Section 9 provides for the setting up of special homes by the state Govt. for reception and
rehabilitation of juvenile in conflict with law. The state may provide for the management of special homes,
including the standards and various types of services to be provided by them which are necessary for re-
socialization of a juvenile, and the circumstances under which the certification of a special home may be
granted or withdrawn.

Section 10 provides that as soon as a juvenile in conflict with law is apprehended by police, he shall be placed
under the charge of the special juvenile police unit or designated police officer who shall immediately report
the matter to a member of the Board. Section 63 of the Act provides for the setting up of a special juvenile
police unit.

Section 11 provide that any person in whose charge a juvenile is placed shall have control over the juvenile as
he would have, if he were his parents and shall be responsible for his maintenance and the juvenile shall
continue in his charge for the period stated by the Board inspite of the fact that he is claimed by his parents or
any other person.

Section 12 of the Act deals with bail of juvenile. Sub section (1) of section 12 provide that when any person
accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is
brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal
Procedure Code or in any other law for the time being in force, be released on bail with or without surety. The

44
http://legalassistanceforum.org/downloads/Text%20Book%20in%20PDF%20Format.pdf
14 | P a g e
sub section uses the word shall which indicates the intention of the Legislature to make this provision
Mandatory. It also indicates that this provision overrides the Code of Criminal Procedure or any other law for
the time being in force. The provision makes it imperative to grant bail to every juvenile delinquent except on
the ground stated in the section itself that is, if there appears reasonable grounds for believing that the release
is likely to bring him into association with any known criminal or expose him to moral, physical or
psychological danger or that his release would defeat the ends of justice.

Sub-section(2) of section 12 provides that when such person having been arrested is not released on bail by the
officer in-charge of the police station, such officer shall cause him to be kept in observation home. Sub-section
(3) casts a similar duty on the Boards if the juvenile has not been released on bail by the officer-in-charge of
police station.45

The Patna High Court in the case of Kashwar Rao v State of Bihar(1997(2) East Cr c 319) observed that
though the earlier bail petition of the petitioner was rejected treating him to be a major and the moment the
petitioner has been declared as juvenile so his prayer for bail will be considered in view of provision of Section
18 of the Act, and the earlier order of the High Court will not be any impediment, and the petitioner can be
released on bail unless the trial Court records a special finding that the release of the petitioner is likely to bring
him into association with any known Criminal or expose him to moral danger or that his release would defeat
the ends of justice. It was held that earlier refusal of bail treating applicant to be major is not impediment in
grant of bail on holding applicant to be juvenile.

The Allahabad High Court has held in Tajuddin V State of UP(2001Cri L J 350 All) that because the applicant
has Criminal history and his tendency is to indulge in crime and if released on bail would expose him to moral
danger and would defeat the ends of justice and therefore, his bail was rightly rejected.

In Mannu v State of Haryana( Date of decision 26.04.2010) a revision petition was field against the order of
Additional Session Judge, Rewari, declining bail to the petitioner. The High Court of Punjab and Haryana
observed that the offence alleged to have been committed by the petitioner is of gang rape. The petitioner also
faced a criminal trail under Sections 323/324/506 IPC. He was facing similar charges in another case. His
brother was also facing Criminal trail U/S 147/148/323/324/341/506 IPC and was involved in a murder case.
The court held that if the petitioner is released on bail, he is likely to come in association with criminals as his
family members are also involved in criminal activities.

In Varinder Singh v State of Punjab (Date of decision : 25.5.2010) the Punjab and Haryana High Court held
that bail to a juvenile cannot be denied merely on the ground that he has committed a heinous crime except on
the grounds provided under the section itself.

Section 13 provides where a juvenile is arrested, the officer-in-charge of the police station or the special police
unit to which the juvenile is brought shall, as soon as may be, inform the parent or guardian of such arrest and
direct him to be present at Board before which the juvenile will appear and also the probation officer so as to

45
http://legalservicesindia.com/article/article/juvenile-justice-system-&-its-delinquency-in-india-1031-1.html
15 | P a g e
enable him to obtain information regarding the antecedents and family background of the juvenile and other
material circumstances likely to be of assistance to the Board for making inquiry.46

Section 14 provides for inquiry by the Board regarding juvenile . It says that when a juvenile delinquent is
produced before the Board, the Board shall hold the47 inquiry in accordance with the provisions of the Act.
Provided that an inquiry shall be completed within 4 months from the date of its commencement unless the
period is extended by the Board having regards to the circumstances of the case and in special cases after
recording the reasons in writing for such extension.

Section 15 and16 enumerate the orders that may and may not be passed against a juvenile. Section 15 enlists
the orders that may be passed against juvenile. It provides that where a Board is satisfied on inquiry that a
juvenile has Committed an offence, the Board may pass any of the below mentioned orders.48

i. allow the juvenile to go home after advise or admonition following appropriate inquiry against and
counseling to the parent or the guardian and the juvenile.

ii. to direct the juvenile to participate in group counseling and similar activities.

iii. order the juvenile to perform community service.

iv. order the parent of the juvenile or juvenile himself to pay a fine if he is above 14years of age and earning.

v. direct the juvenile to be released on probation of good conduct and placed under the care of any parent,
guardian or other fit person or such parent, guardian or other fit person executing a bond with or without
sureties for the good behavior and well being of juvenile for any period not exceeding 3 years.

vi. direct the Juvenile to be released on the probation of good conduct and placed under the care of any fit
institution for the good behavior and well being of the juvenile for the period not exceeding 3 years.

vii. make an order directing the juvenile to be sent to a special home,

a) in the case of juvenile over 17 years but less than 18 years of age for a period of not less than 2 years.

b) in case of any other Juvenile for the period until it ceases to be a Juvenile.

The Board shall also obtain the social investigation report from the Probation Officer or recognized voluntary
organization. If at anytime afterwards it appears to the board on receiving a report from the Probation Officer
or the institution in whose care the juvenile was placed that it is no longer able or willing to ensure the good
behaviour and well being of the juvenile. It may after making inquiry, order the juvenile to be sent to a special
home.

46
http://www.nationalbarindia.org/articles/32/indian-juvenile-justice-system-analysis/
47
http://www.childlineindia.org.in/pdf/CP-JJ-JCL.pdf
48
http://www.forensic.to/webhome/drgsbajpai/lcwseminar.pdf
16 | P a g e
Section 16 details the orders that may not be passed against a juvenile. It provides that no juvenile shall be
sentenced to death or life imprisonment or committed to prison in default of payment of fine or in default of
furnishing security. Provided that where the Board is satisfied that a Juvenile delinquent has attained 16 years
of age and has committed a serious offence or that his conduct and behaviour have been such that it would not
be in his interest or in the interest of other juvenile in a special home to send him to such special home and that
none of the other measures provided under the Act is suitable or sufficient, the Board may order the Juvenile in
conflict with law to be kept in such place of safety and report the case for the order of the State Government. On
receipt of a report from the Board the State Government may make such arrangement in respect of the juvenile
and may order such juvenile to be kept under protective custody. Provided that the period of detention so
ordered shall not exceed the maximum period of imprisonment to which the juvenile could have been
sentenced for the offence.49

Section 17 provides that no proceedings shall be instituted or no order can be passed against a juvenile under
chapter VIII of the court which deals with security for keeping peace and good behaviour.

Section 18 to 21 provides further protection to the juvenile. Section 18 provides that no juvenile shall be
charged with or tried for an offence together with the person who is not a juvenile and if they have been
charged and tried together, the board taking cognizance shall direct separate trials of the juvenile and the other
persons.50

Section 19 provides that a juvenile who has committed an offence and has been dealt with under the provisions
of this Act shall not suffer any disqualification attached to such conviction. The board shall make an order
directing that relevant records of such conviction shall be removed after the expiry of the period of appeal or a
reasonable period. The object of the section is to provide him an opportunity to make amends and that the
doors of a civilized and decent life should not be shut on him. Section 21 affords a similar protection to juvenile.
It provides that any newspaper, magazine, news sheet or visual media shall publish a report which discloses
the name, address or school or any other particulars leading to the identification of the juvenile or any picture
of such juvenile. But the board may permit any disclosure if it is in the interest of juvenile. Any contravention of
this section shall be punishable with fine which may extent to one thousand rupees.

Section 22 makes provision in respect of escaped juvenile. It provides that any police officer may take charge
without warrant, of a juvenile in conflict with law who has escaped from a special home or an observation
home or care of a person under whom he was placed and shall be sent back to the special home or observation
home and no proceeding shall be instituted in respect of the juvenile by reason of such escape. But a report
shall be sent to the Board to take such steps in respect of the juvenile.51

Sec. 23 to 28 deals with offences and punishments. Sec. 23 punishes any person having actual charge of or
control over a juvenile or child, assault, abandons, exposes or wilfully neglects the juvenile or causes or

49
http://www.zis-online.com/dat/artikel/2011_6_584.pdf
50
http://www.jiacam.org/0103/Jiacam05_3_3.pdf
51
http://www.forensic.to/webhome/drgsbajpai/lcwseminar.pdf
17 | P a g e
procures him to be treated as such a manner, likely to call such juvenile or child unnecessary mental or physical
suffering shall be punishable with imprisonment for a maximum term of 6 months or fine or both.

Sec. 24 punishes employment of juvenile or child for begging with imprisonment for a term which may extend
to three years and fine. It also punishes an abettor of an offence u/s 24 with imprisonment upto one year and
fine.

Sec 25 punishes any one who administers to any juvenile or child any intoxicating liquor, a narcotic drug or
psychotropic substance in a public place he shall be punishable with imprisonment which may extend upto 3
years and fine.

Sec 26 punishes exploitation of juvenile or child by employing him for any hazardous employment, keeping him
in bondage or withholds his earnings or uses such earning for his own purposes he shall be punishable with
imprisonment upto 3 years and fine.

Sec 27 provides that all the offences punishable under sections 23, 24, 25 and 26 shall be cognizable. Sec 28
provide that when an act or omission is punishable both under this act and also under any other Central or
State Act, the offender shall be punishable under the act which provide for punishment which is greater in
degree.52

Besides these provisions another provisions important in the context of this article in section 63, which deals
with special juvenile police unit. It provides that in order to enable the police officers to frequently or
exclusively deal with juvenile or primarily engaged in the prevention of juvenile crimes, handling of the juvenile
or children under this act to perform their function more effectively, they shall be specially instructed and
trained. In every police station at least one officer with aptitude and appropriate training and orientation
maybe designated as the juvenile or child welfare officer53 who will handle the juvenile or child in co-
ordinate with the police. It also provides that special juvenile police unit of which all police officer designated
as above, to handle juvenile or children will be members, may be created in every district and city to co-
ordinate and to upgrade police treatment of juvenile and the children.54

CHAPTER VII

CRITICAL ANALYSIS

The JJA 2000 applies to children in need of care and protection. While the section defining children in need of
care and protection contains a long list of categories of children included in it, it has continued with the system
of having a separate body for dealing with children in need of care and protection, namely, the Child Welfare
Committee. The Committee consists of non-judicial members who have been vested with the powers of a

52
http://legalservicesindia.com/article/article/juvenile-justice-system-&-its-delinquency-in-india-1031-1.html
53
http://www.childlineindia.org.in/pdf/CP-JJ-JCL.pdf
54
http://www.forensic.to/webhome/drgsbajpai/lcwseminar.pdf
18 | P a g e
Magistrate. The Committee has to follow the procedure of summons cases as prescribed in the Code of Criminal
Procedure in holding proceedings. There are very few cases reported in relation to neglected children and
most of the issues relating to nature of the Committee and its proceedings, such as the right to a lawyer, burden
of proof, standard of proof remain unaddressed. Since the constitutionality challenge in Kario @ Mansingh
Malus case, prohibition against a lawyer before the juvenile court was abolished. However, the proceedings
before the Committee continue to be conducted without a lawyer. The definition of deprivation of liberty under
the UN Rules for Protection of Juveniles Deprived of Liberty reads:55

The deprivation of liberty means any form of detention or imprisonment or the placement of a person in a
public or private custodial setting, from which this person is not permitted to leave at will, by order of any
judicial, administrative or other public authority.56

It is clear from this definition that children kept in children homes pursuant to the order of the Committee fall
squarely in this definition as they cannot leave the home at will. All those children should have a right to legal
counsel. The Indian Constitution recognizes the right to a lawyer in case of deprivation of liberty for all. All
children are entitled to free legal aid under the Legal Services Authorities Act also. The Child Rights Convention
and the Beijing Rules direct that children should be provided with legal representation against deprivation of
liberty. However, no provision is made for providing lawyer in the proceedings before the Child Welfare
Committee (hereinafter CWC). The understanding is that the CWC is a welfare body and the proceedings before
it are welfare and not judicial proceedings and hence, there is no need for a lawyer. However, the reality is that
they remain deprived of their liberty without any legal assistance and their fundamental rights are thereby
violated

Suggestions57

Control of delinquency needs effective implementation of Juvenile Justice Act, with full public awareness and
proper orientation and training to professionals and law enforcement agencies.
Application of UN Rules for Juveniles Deprived of their Liberty (1990) Advocacy for various legal provisions
provided for juveniles.

A proper mechanism should be created to assess the needs and requirements of the juveniles and it should be
reviewed regularly.

The approach of the agencies like police involved in the system may be more of reformative character rather
than pure penal. The objective may be to reform the delinquents, rather than just to punish them.

55
http://www.nationalbarindia.org/articles/32/indian-juvenile-justice-system-analysis/
56
http://legalservicesindia.com/article/article/juvenile-justice-system-&-its-delinquency-in-india-1031-1.html
57
http://www.nujslawreview.org/articles2009vol2no4/ved-kumari.pdf
19 | P a g e
Government should put more emphasis of useful and attractive beneficial long-term schemes for Juveniles so
that they feel motivated to join main stream of the society and regain their self-confidence, which is generally
lost because of the callous attitude of the society

State Governments and Union Territories administrations should encourage and provide support to voluntary
organization to start or modernize juvenile services including community services.

Longer association of community and voluntary organizations in the schemes of Government programs like
nutrition for all, literacy, health, eradication of child labour, etc. shall help to a great extent to weed out
delinquency.

All the stakeholders should give coordination and networking, as the aims of juvenile justice could be achieved
mainly through concentrated and co-ordinate functioning.58

BIBLIOGRAPHY

1. http://indiankanoon.org/doc/370227/
2. http://legalassistanceforum.org/downloads/Text%20Book%20in%20PDF%20Format.pdf
3. http://legalservicesindia.com/article/article/juvenile-justice-system-&-its-delinquency-in-india-1031-
1.html
4. http://wcd.nic.in/childprot/jjact2000.pdf

5. http://www.childlineindia.org.in/pdf/CP-JJ-JCL.pdf
6. http://www.dnaindia.com/india/report_government-all-set-to-amend-juvenile-justice-act_1396998
7. http://www.forensic.to/webhome/drgsbajpai/lcwseminar.pdf
8. http://www.jiacam.org/0103/Jiacam05_3_3.pdf
9. http://www.nationalbarindia.org/articles/32/indian-juvenile-justice-system-analysis/
10. http://www.nujslawreview.org/articles2009vol2no4/ved-kumari.pdf
11. http://www.zis-online.com/dat/artikel/2011_6_584.pdf

58
http://www.dnaindia.com/india/report_government-all-set-to-amend-juvenile-justice-act_1396998
20 | P a g e